A/HRC/13/39/Add.5
136. The decision on whether to conduct an investigation is not discretionary, but rather
is an obligation irrespective of the filing of a complaint.74 Whenever there are reasonable
grounds, an investigation must be instigated regardless of the origin of suspicion.75
137. The “promptness” of the investigation is crucial in two aspects. First, it has to be
ensured that the victim is protected and no further abuse can be inflicted. Second, unless the
torture resulted in permanent traumata, injuries will soon disappear and undermine the
evidentiary basis. As soon as there is a suspicion, an investigation shall be initiated
immediately or without any delay, within the next hours or days.76 It therefore has to be
ensured that all public officials, in particular prison doctors, prison officials and magistrates
who have reasons to suspect an act of torture or ill-treatment, report this ex officio to the
relevant authorities for proper investigation in accordance with article 12.77
138. The requirement to initiate an investigation ex officio would be a very strong means
to combat impunity and prevent torture. Unfortunately, most officials I encountered are
apparently not aware that they are under any international human rights obligation to be
active on their own initiative, including whenever they come across detainees with
suspicious injuries or hear rumours about a colleague abusing detainees. In fact, in some
countries, domestic law does not include any ex officio obligation for law enforcement
officials.78
139. Instead they follow a “don’t ask, don’t tell” approach and turn a blind eye. For
example, at Ciudad del Este Prison in Paraguay, I interviewed a detainee who had recently
been subjected to torture and ill-treatment by the police, which had left visible marks. He
had subsequently been interviewed by the prosecutor, taken before the court and transferred
to the prison. However, none of the officials who saw him asked whether he had been
subjected to torture or ill-treatment. In another case, also in Ciudad del Este, I interviewed a
detainee with visible signs of torture and ill-treatment at a local police station. In response
to my questions about the injuries, the police guards on duty simply informed me that the
detainee arrived from another police station with the injuries. However, they had not taken
any steps to carry out a medical examination, initiate an investigation or provide medical
treatment.79 Similarly, the head of Jordan’s main pre-trial detention facility clearly told me
that initiating investigations into traces of torture of new arrivals would not be his
responsibility.80
C.
Fighting torture – What needs to be done?
1.
Combating impunity
(a)
Aligning the legal framework
140. Impunity for the perpetrators of torture is one of the root causes for its widespread
practice worldwide. To fight impunity it is important that States establish a legal framework
74
75
76
77
78
79
80
36
See e.g. CAT/C/SR.145, para.10 and SR.168, para. 40; CAT/C/FRA/CO/3, para. 20.
Blanco Abad v. Spain, No. 59/1996, para. 8.2. See above, 3.2.
This corresponds also to the meaning of „promptly” in articles 9 and 14 CCPR: cf. Nowak, CCPRCommentary, 210–240, 302–357. Nedyibi v. Austria, No. 8/1991, para 15; M’Barek v. Tunisia, No.
60/1996, para. 11.5–11.7; In Blanco Abad v. Spain, a delay of two weeks was found to constitute a
violation of article 12. See Blanco Abad v. Spain, No. 59/1996.
Sri Lanka Report, A/HRC/7/3/Add.6, para 94 (b).
Sri Lanka Report, A/HRC/7/3/Add.6, para X.
A/HRC/7/3/Add.3, para 58.
A/HRC/4/33/Add.3, para 57.
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